HER HONOUR: These are proceedings for defamation commenced by Mr Andrew Cornwell, a member of the New South Wales Legislative Assembly, arising out of the broadcast of a segment of the news on Channel Seven. On 13 November 2015, I ruled on the plaintiff's objections to the defence, reserving my reasons. These are my reasons for the rulings given that day.
The broadcast concerned the plaintiff's conduct in his capacity as a director of a company referred to in the broadcast as Newcastle Palais Holdings. The statement of claim specifies 14 defamatory imputations alleged to arise from the broadcast. The defence pleads a defence of truth to some imputations and also a defence of contextual truth. The contextual imputations specified by the defendants are:
1. The plaintiff engaged in such serious misconduct in relation to Liberal Party finances that he had to resign his position as a Government MP thereby disgracing the Government of which he had been a member;
2. The plaintiff was exposed by the Independent Commission Against Corruption as having engaged in serious misconduct;
3. The plaintiff is dishonest;
4. The plaintiff was negligent as a director of Newcastle Palais Holdings in that he was unaware that his father, a disgraced lawyer and property developer, was using the company for the purpose of an illegal investment scheme.
The plaintiff submitted that none of those imputations is capable of arising from the matter complained of. In addition, the plaintiff submitted that imputation (iii) is incapable of meeting the requirement of s 26 of the Defamation Act 2005 (NSW) that it be an "other" imputation carried "in addition to" the defamatory imputations of which the plaintiff complains.
I ruled that contextual imputation (i) is incapable of arising. The whole focus of the news segment is Mr Cornwell's conduct in his capacity as a director of Newcastle Palais Holdings. The only reference to the plaintiff's conduct as a member of Parliament or his investigation by the Independent Commission Against Corruption comes in the opening words of the matter complained of, as follows:
"Welcome back to Seven News. As we reported earlier, two Government MPs are the latest casualties of the ICAC hearings into Liberal Party finances."
The segment continues by explaining that Seven News has investigated the business conduct of one of those men, the plaintiff. The matter complained of does not otherwise refer to the plaintiff's conduct as a member of Parliament or any ICAC investigation. Mr Dawson, who appears for the defendants, noted that the news segment returned to the theme of the plaintiff's parliamentary conduct in the concluding words of the matter complained of, as follows:
"Investors are hopeful they will learn what role Brien Cornwell's parliamentarian son played in their financial pain."
Mr Dawson submitted that the reference to the two members of Parliament as "the latest casualties of the ICAC hearings into Liberal Party finances" is reasonably capable of giving rise to contextual imputation (i). In my respectful opinion, that meaning simply cannot be gleaned from those words alone. This question is not to be judged by reference to what might be known by the reader from other sources The bare words of the matter complained of are simply incapable of attributing to Mr Cornwell any of the elements of the imputation (serious misconduct, having to resign as a member of Parliament and disgracing the Government). I do not think the concluding words of the matter complained of add anything; they do no more than to refer to the plaintiff's role as a member of Parliament.
For substantially the same reasons, I ruled that contextual imputation (ii) is incapable of arising. The bare reference to Mr Cornwell as a "casualty" of the ICAC hearings is, in my view, incapable of giving rise to the meaning that he engaged in serious misconduct or was exposed by ICAC as having done so.
The plaintiff objected to contextual imputation (iii) on the grounds that it is incapable of arising and incapable of arising in addition to the plaintiff's imputations. The burden of the submission was that the plaintiff has, in his pleading, so comprehensively trawled the matter complained of for defamatory imputations that there could be nothing left for the defendants to plead by way of contextual imputation. It was further submitted, for essentially the same reason, that the general imputation of dishonesty cannot arise in addition to each of the separate instances of dishonesty captured in the plaintiff's imputations.
The requirements of s 26 of the Defamation Act were considered recently by the Court of Appeal in Fairfax Media Publications v Zeccola [2015] NSWCA 329. The Court in that case rejected the existence of any requirement that a contextual imputation differ in kind from the plaintiff's imputations, evidently holding that the only requirement of a contextual imputation is that it differ in substance from the imputations complained of by the plaintiff.
The premise of Ms Chrysanthou's argument was that, if a plaintiff pleads an imputation for every specific instance of misconduct attributed to the plaintiff in the matter complained of, a general imputation based on the same particulars cannot arise. For the reasons cogently explained by Mr Dawson, I think that submission must be rejected.
One begins with the premise that a specific imputation, that is, one which attributes a specific instance of misconduct, can differ in substance from a general attribution (for example, a single act of theft versus being a thief). Mr Dawson suggested that there are two ways in which a defamatory publication can convey both a specific imputation and a general imputation at the same time. The first is where the kind of conduct attributed to the plaintiff in a single act is inherently such as to give him or her the general label. The example adopted during argument was that of an act of paedophilia. The attribution of a single act of paedophilia would, at the same time, convey the general imputation that the person was a paedophile. Conversely, a single act of theft or lying may not convey the general imputation that the plaintiff was a thief or a liar, depending on the context.
Mr Dawson submitted that the second kind of publication which might convey a specific imputation and a general imputation at the same time would be one in which a series of specific instances of misconduct was attributed to the plaintiff so as to give rise to the broader, general imputation. He submitted that, in the present case, the matter complained of attributes the plaintiff with such a series of individual acts of dishonesty as to give rise at the same time to the general imputation that the plaintiff is dishonest.
I accepted that submission and, for that reason, was not persuaded that contextual imputation (iii) was incapable of being conveyed or incapable of meeting the requirements of the statute. That is not to say that the defendants will necessarily be permitted, in the interlocutory steps or at the hearing, to explore conduct outside the specific context of the events addressed in the matter complained of.
Contextual imputation (iv) specifies a particular instance of negligence. One of the plaintiff's imputations also specifies an instance of negligence but it is not the same as that captured in contextual imputation (iv).
I was persuaded that the imputation is reasonably capable of being conveyed by the combination of the assertion that the plaintiff denied any knowledge of the illegal investment scheme referred to, coupled with the words attributed to Rob Wyld, "anti-corruption lawyer" who said "a director or officer of a company cannot sit back and say 'I had no idea', 'I did not know', 'It was not my responsibility', 'it was someone else', or 'it was management'". The combination of that material in my view is reasonably capable of giving rise to the imputation that, if the plaintiff did not know of the illegal investment scheme referred to, that in itself reveals negligence as a director.
For those reasons, I ruled that contextual imputations (i) and (ii) were incapable of arising. I direct that those imputations be struck out of the defence. I rejected the objection to contextual imputations (iii) and (iv). Those imputations will go to the jury.
Mr Dawson inquired whether the defendants would have leave to re-plead the two ICAC imputations. I indicated that I would have to be persuaded that they should since it was my initial impression that no imputation concerning the ICAC investigation could be milked from the few words relied upon. With his customary politeness, Mr Dawson reminded me that "milked" is not the verb adopted in the statute. In any event, it is open to the defendants to address that issue at the next listing.
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Decision last updated: 09 December 2015